SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The application for an extension of time to appeal against conviction and to apply for leave to appeal against sentence should be refused for the reasons given by Fraser JA.

[2]  FRASER JA: On 31 January 2008 the applicant pleaded guilty in the District Court to two counts of raping a 16 year old girl on 18 November 2005.  The learned sentencing judge recorded convictions with respect to both counts and sentenced the applicant to concurrent terms of imprisonment of six and a half years.  His Honour also found proved a breach of the terms of a wholly suspended sentence of one month imposed on 3 June 2005 and ordered that term of one month to be served concurrently with the other terms of imprisonment.  The sentencing judge fixed the applicant's parole eligibility date at 30 March 2010.  By that date the applicant will have served two years and two months, or one-third of the term of imprisonment. 

[3]  On 4 June 2009 the applicant filed an application for an extension of time within which to appeal and a notice of appeal.  The notice of appeal incorrectly describes the offences of which the applicant was convicted as "rape; sexual assault whilst armed in company; deprivation of liberty."  The transcript of the sentencing hearing establishes that the applicant pleaded guilty to and was convicted of two counts of rape.

 Extension of time

[4]  This Court decided in R v Tait [1999] 2 Qd R 667 at 668 that in deciding whether to extend time it is necessary to consider whether there is any good reason shown to account for the delay and whether it is overall in the interests of justice to grant the extension.  The Court will often find it appropriate to make some provisional assessment of the strength of the applicant's proposed appeal, where that is feasible, which the Court will then take into account in deciding whether it is appropriate to extend time.

[5] The applicant's delay in appealing is of the order of 15 months.  His explanation was that he failed to comprehend the offences to which he had pleaded guilty until he arrived at the prison.  He attributed that to a disadvantaged upbringing, limited education, and emotional disturbance associated with the death of his father when the applicant was only 14 years old.  He also argued that he was "assured prior to entering my plea that I was pleading guilty to my involvement in the offence, (sexual assault whilst in company)" and that if he pleaded guilty he would be convicted and sentenced accordingly.  The applicant asserted that after furthering his education whilst incarcerated he became fully able to acknowledge the seriousness of his conviction, "but the fact that I plead guilty to Rape is unacceptable given the fact that I was not made aware that this was an offence I would also be convicted and sentenced on."  He said that Legal Aid advised him that it would not fund his proposed appeal because it considered that his case lacked merit.  His own lack of resources contributed to his inability to bring the appeal earlier. 

[6] There is a substantial overlap between that explanation and the applicant’s arguments in support of his proposed appeal.  It is appropriate also to take those arguments into account in deciding whether an extension of time should be granted in order to avoid the perpetuation of any miscarriage of justice. 

Proposed appeal

[7] The applicant submitted that the circumstances of his offences were as follows: after the applicant, a co-offender and the complainant went into an alley in Brisbane’s central business district, the co-offender asked the complainant once if she wanted to have sex with him; they kissed although she had clearly stated that she did not want to have sex; the co-offender and the complainant then lay down; "the applicant then joined in and proceeded to suck on the young ladies breasts"; unknown to the applicant, the co-offender had penetrated the complainant; she then "became complacent after several minutes, and extremely thwarted when the co-offender had subjected the young lady to anal penetration"; the complainant then made clearly known to the co-offender that she was no longer interested, put her clothes back on and left; and during those events the only part of the alleged offence that the applicant participated in was the act of sucking on the complainant's breasts. 

[8] The applicant argued that his part of the offence amounted only to the offence of "sexual assault armed/in company".  Putting aside the reference to "armed", the point which the applicant endeavoured to make was that he had not intended to plead guilty to the offences of rape.  He argued that he should have been sentenced only for "sucking on a females breast, who at the time of the offence did not resist or communicate offence to the act performed."  He said that he had entered an "equivocal plea", contributed to by lack of communication with his legal representatives whilst on bail and the fact that he could not read, so that he did not see the prosecution case made against him.  He argued that he relied solely on the advice and guidance of his legal representative who, he asserted, had "withheld an imperative fact in the prosecutors case which corroborated the applicants innocence of the crime of Rape." 

[9] It seems that this "imperative fact" was DNA evidence which corroborated the statements made by the complainant that the applicant had sucked her breast.  The applicant contended that this evidence established his innocence.  The applicant argued that the sentencing judge acknowledged that the DNA evidence "quite clearly established the accused's innocence yet accepted the plea of guilty."  He argued that the sentencing judge had acknowledged that the applicant had not physically raped the complainant and that his Honour had therefore erred in accepting his pleas of guilty.  He contended that he was made an example of through "unfair practices and bias due to institutional racism of Australian Indigenous peoples." 

[10]  The applicant cited authority[1] for his proposition that a plea of guilty might be set aside in circumstances in which the accused did not understand the nature of the charge; or did not intend to admit that he was guilty of it; or where upon the facts he admitted by his plea he could not in law have been guilty of the offence; or where because of lack of representation there is some reason to doubt that the accused proceeded upon a proper understanding of the factors affecting guilt or innocence; or where there was no plea at all because of its equivocal nature; and that the accused may show that a miscarriage of justice has occurred in other ways and be allowed to withdraw his plea of guilty, for example, where his plea was induced by intimidation, other improper inducements, or fraud.

The sentence hearing

[11]  The applicant's contentions are irreconcilable with the record of the sentence hearing on 31 January 2008.

[12]  At the sentence hearing the applicant was represented by experienced defence counsel, who was instructed by a firm of solicitors.  The applicant was arraigned and pleaded guilty to two counts of raping the named complainant on 18 November 2005 at Brisbane.  The judge’s associate then administered the allocutus; that is, the judge’s associate told the applicant that he had been convicted on his own pleas of guilty of two counts of rape and enquired whether he had anything to say why sentence should not be passed upon him.  The sentencing judge then told the applicant that counsel would be heard.

The circumstances of the offences outlined by the prosecutor

[13]  The prosecutor outlined the following circumstances of the offences.

[14]  On 18 November 2005 in the central business district of Brisbane at about 12.30 am the complainant and a female friend of hers encountered the applicant.  He was with a man who, on the Crown case, was a co-offender and a third man who knew the complainant's friend.  The third man behaved in such a way as to attract the attention of police.  They took the names and details of each of the five persons in the group.  The third man left together with the complainant's friend, leaving the complainant alone with the applicant and his co-offender.  She had not earlier known either of them.  The co-offender and the applicant both asked the complainant to go for a walk.  The complainant's description of that request was that the applicant and the co-offender were fairly insistent.  The complainant felt scared of them and went along, but there was no suggestion that there was any physical force or coercion. 

[15]  The three of them walked down a street and into an alley.  Once they were in the alley the co-offender "pushed the complainant down" on to a large garbage bin and crudely expressed his wish to have sexual intercourse.  The complainant responded by saying words to the effect of, "I don't want to.  Leave me alone."  The Crown case was that the complainant repeated that a number of times throughout the incident.  The prosecutor continued:

"At that point it seems [the co-offender] requested that this prisoner hold the complainant down. The complainant held her. There was further request for the complainant to kiss them and the complainant continued to object to that. She recalls at some stage both this prisoner, but predominantly [the co-offender] saying words to the effect of they could stay there and fuck her all night long. She recalls this prisoner attempted to remove her pants and she continued to object saying, 'No, leave me alone.', or words to that effect. He ultimately did pull her pants down and it seems her top was removed. This prisoner was sucking on one of her breasts and following that or at the same time [the co-offender] effectively lifted her legs and forcibly raised them above his own shoulders. She recalls that she was then penetrated by [the co-offender] with his penis to the area of her vagina. She states that she continued to object and was moving around begging her – him to stop. Following that, [the co-offender], it seems, removed his penis from her vagina and inserted it for a short period of time into her anus. When that occurred the complainant began screaming loudly at both prisoners and they subsequently desisted and ran from the area. She recalls the prisoner saying to her words to the effect of, 'Don't tell anyone. We didn't force you to do anything.'"

[16]  Subsequently the complainant dressed, returned to the mall area and complained to a citizen and then to police.  She was upset and crying.  She was taken to hospital.  A medical examination showed bruising to one of her breasts and internal physical injuries which the prosecutor described in terms that were consistent with recent penetration of her vagina and anus.  The applicant was quickly identified, located and arrested.  He declined to participate in a record of interview.  Subsequent forensic testing established that the applicant's DNA was found in a swab taken from the complainant's breast and her bra. 

[17]  The learned sentencing judge asked the prosecutor about the basis of the applicant's legal responsibility.  That led to the following exchange:

"MR CASSIDY:  Aided, encouraged, assisted the actual penetration of the complainant. In my submission, the evidence is that he was actively involved in what occurred in holding down the complainant. He was participating in the sexual indignities in as far as kissing her breasts and so forth.

HIS HONOUR:  So it is a section 7 case – held her down and participated. Also touching her breasts is not charged as some additional offence. It is part of the assistance, is that it?

MR CASSIDY:  Well, my submission it is part of the facts which the Crown relies upon.

HIS HONOUR:  Yes.

MR CASSIDY:  It doesn't need to be charged separately, given that the rape, which is he is part and party of -----

HIS HONOUR:  So the other man was guilty of all the penetration; is that right?

MR CASSIDY:  Yes, he is the one who actually effected penetration.

HIS HONOUR:  Yes.

MR CASSIDY:  The Crown case is that this man was a willing and active participate in those events.

HIS HONOUR:  Yes. All right. Yes."

The prosecutor’s submission

[18]  The prosecutor submitted that the appropriate penalty was in the order of six to eight years imprisonment, with an order fixing the parole eligibility date after about one-third of the otherwise appropriate head sentence had been served.  After submissions and discussion with the sentencing judge about a comparable decision (R v Kahu [2006] QCA 413), the prosecutor submitted that the co-offender, as the person who was the driving force behind the offence and the one who "principally" coerced the complainant to go to the alleyway, told the applicant to hold her down, actually effected penetration, and made most of the disparaging remarks, would be given a more severe sentence, perhaps of nine to eleven years in prison.  In the course of those submissions the prosecutor submitted that it was an aggravating feature of the applicant's offence that he committed it in company with the co-offender but that the applicant's "actual involvement and participation" suggested the range of six to eight years submitted by the prosecutor.  The prosecutor added that the applicant "willingly went along and actively participated".

Defence counsel’s submissions

[19]  Defence counsel did not contradict any aspect of the prosecutor’s outline of the circumstances of the offences.  Defence counsel relied upon the applicant's pleas of guilty and his remorse in mitigation of sentence. 

[20]  Defence counsel commenced his submissions by quoting from a record of the complainant's police interview in which she said that both the applicant and his co-offender initially told her that they both wanted to have sexual intercourse with her and that she said "no": defence counsel then observed that "obviously she is making it clear she doesn't want to have sex".  Defence counsel said that he wished to make it clear that the complainant was obviously entitled to say no at any particular time but that she still went with the applicant and the co-offender with the knowledge that they were obviously looking for sex.  He repeated that the complainant remained entitled to say no and, "obviously as per what the prosecutor has read in the record that when she was down or near this bin – she said to – said no at that particular time." 

[21]  Defence counsel said that in conferences he had with the applicant on 20 and 21 November 2006 the applicant indicated that he did not wish the complainant to be cross-examined and gave instructions for the full hand-up committal.  The applicant's mother was present at those conferences.  The applicant "made it quite clear that he didn't wish to go to trial and he gave us instructions back then that he was guilty of the offence when it was explained to him carefully and clearly, section 7 of the Code and his [sic: its] implication."  Defence counsel submitted that by the applicant's plea of guilty and by not requiring the complainant to give any evidence the applicant had shown remorse. 

[22]  Defence counsel said that he had been involved in the full hand-up committal on 11 December 2006 and he was fairly certain that he had indicated to an officer of the Crown that there would be a plea of guilty.  There was some negotiation about charges of deprivation of liberty and sexual assault which were before the Magistrates Court.  Ultimately those charges were not pursued.  Defence counsel made other submissions in mitigation of penalty, including giving details of the applicant's personal circumstances, and submitted that an appropriate sentence was six years imprisonment with a parole eligibility date at the end of two years. 

[23]  After some further submissions in response to questions raised by the sentencing judge, defence counsel contended that it was a relevant factor that whilst the applicant was "pretty much involved in all of this", "he didn't actually do the worst deeds of all". 

Sentencing remarks

[24]  The learned sentencing judge addressed the applicant, saying that he had heard the things that had been said.  His Honour continued:

"You have pleaded guilty to two counts of raping a girl who was 16 years old at the time. You, in fact, did not physically rape her but you certainly assisted the other man called [the co-offender] to both rape her vaginally and anally, the second resulting in an injury as well to her anal area and internally."

[25]  The sentencing judge then summarised the circumstances of the offence as they had been outlined by the prosecutor, the manner in which the applicant was identified, the procedural history, the applicant's personal circumstances, and the submissions made by the prosecutor and defence counsel.  His Honour then imposed the sentence. 

Discussion

[26]  Section 7 of the Criminal Code 1899 (Qld), which defence counsel informed the sentencing judge had been explained to the applicant before he pleaded guilty, provides, so far as is relevant here, that when an offence is committed, a person who does any act for the purpose of enabling or aiding another person to commit the offence or who aids another person in committing the offence is deemed to have taken part in committing the offence, to be guilty of the offence, and may be charged with actually committing it.  On the facts outlined by the prosecutor the applicant plainly was a person who did acts for the purpose of enabling or aiding his co-offender to commit the rape offences and aided him in committing those offences, such that the applicant was deemed by s 7 to have taken part in and to be guilty of the rape offences committed by his co-offender.

[27]  In Meissner v The Queen[2] Brennan, Toohey and McHugh JJ said:

"A court will act on a plea of guilty … when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

[28]  The applicant’s submissions to this Court about the circumstances of the offences directly conflicted with the prosecutor’s statements at the sentence hearing to the effect that, after the co-offender had made plain his desire to have sexual intercourse with the complainant and she refused, the applicant complied with his co-offender's request to hold the complainant down; she continued to object to kissing the co-offender and the applicant; the applicant made plain his own desire to have sexual intercourse with the complainant; the applicant attempted to remove her pants over her objections; the applicant succeeded in pulling the complainant's pants down; and that while the applicant was holding the complainant down his co-offender forcibly lifted her legs (obviously to give effect to his expressed intention to have sexual intercourse despite her continuing objections). 

[29]  Those statements by the prosecutor, defence counsel’s acquiescence in and elaboration of those statements, and the sentencing judge’s similar statements, were all made in the applicant’s presence.  The record shows that after the applicant pleaded guilty to both counts of raping the complainant he remained silent during the hearing.  I do not question the applicant’s submissions about the disadvantage in his upbringing, his personal difficulties or his lack of education at the time he was sentenced; but, had the circumstances of the offences been as the applicant now asserts, nothing the applicant argued could plausibly account either for his unequivocal pleas of guilty or for his remaining silent during the rest of the sentencing hearing.

[30]  The applicant’s eloquent description of his background was not given in terms which were capable of supporting a contention that he was deprived of the ability to understand the perfectly clear and unambiguous charges of rape or the descriptions of the circumstances of the offence by the prosecutor, defence counsel, and the sentencing judge.  The stark inconsistency between the applicant’s contentions and the record, coupled with the absence of evidence from the applicant, his counsel, his solicitor, and his mother of what in fact occurred at the hearing make it impossible to accept the applicant’s contentions. 

[31]  The applicant has not established an arguable case that his plea of guilty was entered in the factual circumstances for which he contended and which formed the essential bases of his arguments.  It is unnecessary to examine the authorities cited by the applicant concerning the exceptional circumstances in which the court will set aside a plea of guilty entered by a person of full age and apparently sound mind and understanding.[3]  Here, the applicant was in fact of full age and sound mind and understanding when he voluntarily entered his unequivocal guilty pleas to the offences of rape with which he was charged.  There is no arguable ground for setting aside the applicant’s guilty pleas and therefore no substance in his proposed appeal against his convictions.  Accordingly it is inappropriate to extend the time within which the applicant was permitted to appeal.

Sentence

[32]  Whilst the notice of appeal expressed the applicant's desire to appeal against his conviction and sentence the stated grounds of appeal and the applicant’s written argument related only to his conviction.  In oral argument the applicant contended that his sentence was excessive.  He relied particularly upon his youthfulness, his cooperation with the authorities, his early plea of guilty, that he was not the principal offender and the absence of gratuitous violence in his offences.

[33]  The applicant was 20 years old when he committed the offences and he was 24 years old when he was sentenced.  He committed the offences during the operational period of a suspended sentence of one months’ imprisonment.  The offences involved brutal rapes, in company, of a 16 year old girl previously unknown to the applicant.  The complainant suffered adverse emotional effects described in a victim impact statement.

[34]  The applicant was originally arrested on the evening of the offence.  At the time of the committal hearing in March 2006 the police had not obtained the results of analysis of DNA material with the consequence that the Magistrate refused an adjournment and the Crown offered no evidence at the committal.  The applicant was subsequently re-arrested in May of 2006 and a committal hearing proceeded in December 2006 by way of a full hand-up.  The matter was listed for trial on 30 August 2007 but after the applicant's intention to plead guilty was advised on 26 October 2007 the matter was listed for sentence.  The sentencing judge treated this as an early plea.

[35]  The applicant had a criminal history which, in addition to a variety of what the prosecutor described as "street type offences" of a "relatively low level", included four offences of assault occasioning bodily harm, one of which the applicant committed whilst he was armed with a weapon.  He had previously breached the terms of non-custodial orders.  He had not previously been imprisoned, but he committed the subject offences during the 12 month operational period of a wholly suspended sentence of one month imprisonment imposed for the offence of assault occasioning bodily harm whilst armed.  In that offence the applicant hit his 15 year old female cousin with a fence paling after he had pushed her in the chest, punched her to the back of her head, and kicked her after he had knocked her to the ground.

[36]  The applicant submitted that the offender in the comparable decision referred to by the sentencing judge, R v Kahu [2006] QCA 413, committed a more violent offence.  The relevance of R v Kahu though is that the Court there cited with approval the statement in R v Basic[4] that the range of sentences on a plea of guilty to the rape of a young woman alone in a public place where there has not been a brutal bashing of the victim and where the offender had no like prior convictions was between seven and ten years.  Like the applicant, the offender in RvKahu was youthful and had committed rape offences within the operational period of a suspended sentence of imprisonment.  It must be borne in mind that those decisions did not concern offenders who committed their offences in company.

[37]  The sentencing judge took into account the applicant’s plea of guilty, his personal circumstances and that he did not have the major role in the offences.  His Honour also took into account the absence of gratuitous violence by the applicant which, as the applicant argued, was evidenced by the medical evidence that the complainant was not seen to have bruised arms when she was examined shortly after the offences.  It was, however, a seriously aggravating feature of the applicant’s offences that he committed them in company.

[38]  In my opinion the sentence was plainly within the learned sentencing judge’s discretion.  It was certainly not manifestly excessive.  There would be no substance in the proposed application for leave to appeal against sentence.  An extension of time should therefore not be granted to allow such an application to be brought.

 Proposed order

[39]  I would refuse the application.

[40]  CHESTERMAN JA: I agree with the order proposed by Fraser JA for the reasons given by his Honour.